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The Weekly paper of the New Communist Party of Britain


Employment Rights Bill

by New Worker correspondentt

The Starmer Government’s Employment Rights Act is presently going through the Committee stage in the House of Commons, which is where the detail gets worked out after having been approved in principle. It has come under scrutiny by none other than Lord John Hendy KC, at the Anjou Lunch Club, earlier this month.

Hendy has long been active in this field starting with the miners’ strike of 1984-5 and the Wapping dispute with Rupert Murdoch’s News International in 1986. Being a mate of Jeremy Corbyn saw him getting promoted to the red benches.

Hendy takes an unsurprisingly dim view of the measure. It is clearly very far from what Labour claim is “the biggest upgrade of workers’ rights for a generation” and while it might be the first serious overhaul of workers’ and union rights for 50 years, this Bill “almost completely fails to do the minimum necessary to redress the balance”. A particularly serious matter as Hendy thinks this is “a unique opportunity – probably the only one in our lifetimes – to reform the law at work”.

He points out that at present nearly 38 per cent of those on universal benefits are actually in work with almost a million in poverty with households where someone is working, a clear result of the present weakness of trade unionism.

This weakness is reflected in the bald statistics that tell us that the coverage of collective bargaining has fallen from over 80 per cent between 1945 and 1980 and is now down to quarter. Peak union membership of 13.5 million in 1979 is less than half that today.

He points out that there were six Acts of Parliament between 1982 and 1992, attacking unions and the concept of collectivism in General. Two specific aspects of this neo-liberal offensive were the removal from the conciliation service ACAS of the right to promote collective bargaining. In addition “the Ministry of Labour was eroded into non-existence”.

In 2021 the then opposition Labour party promised great things. The New Deal for Working People emerged. This was shaped by Andy McDonald, the Middlesbrough MP. Tellingly he is still a backbench MP and not even a humble junior minister.

The original version included goodies such as Fair Pay Agreements to be negotiated through sectoral collective bargaining in order to reverse the decades-long of decline in collective bargaining. This would have seen worker and employer representatives sit down to negotiate Fair Pay Agreements that would establish binding minimum terms and conditions.

This was adopted at both the 2021 and 2022 Labour Party conferences, which Starmer applauded. In accordance with long-standing custom however, Labour Conference decisions are ditched whenever the leadership is worried about the Daily Mail denouncing them.

And so it came to pass: the commitment to restoring collective bargaining was dropped and the programme retitled Make Work Pay shortly before the election. The only part of the policy that remained in the Manifesto was a commitment to “establishing a new Fair Pay Agreement in the adult social care sector”, collective bargaining for other sectors vanished like snow off a dyke.

Even here the Bill is very weak. Hendy notes that while it plans to establish an Adult Social Care Negotiating Body and a School Support Staff Negotiating Body, these bodies do not constitute collective bargaining. This is due to the fact that “so many aspects of the arrangements are not determined bilaterally by the negotiating parties but by the Bill or by regulations made by the Secretary of State under it, regardless of the wishes of the parties”.

In other words, the unions have simply been ignored. What a surprise.

Hendy points out that “there are problems with almost every aspect of the Bill. Clearly, the Bill needs amendment if we are to improve living standards, fulfil our international legal obligations to encourage and promote collective bargaining, and re-empower unions on behalf of workers.”

Perhaps over-optimistically, he thinks that improvements to the Bill can be made. “The game is not lost, but it is getting more urgent,” he said, but also added that business is lobbying for very different objectives. Already “the comprehensive industrial relations reforms of the New Deal for Working People have been filleted in this Bill, the guts ripped out”.

Worse “there is no obvious sense of urgency on the union side to insist on the New Deal, repeal Thatcher’s anti-union laws and restore to unions the legal space in which they can again effectively defend and improve the lives of those who work”. Gosh, who would have guessed that union biggies have no more liking for bolshie workers than the bosses.

Hendy observes that neither himself nor Professor Keith Ewing, another expert, nor any other progressive employment law expert has been consulted. He laments that it has been impossible to see who has been giving the Government advice, but suspects it is lawyers paid for by bosses. How could he be so cynical?

The Fine Print

To return in more detail to the limited negotiating bodies for social care and school staff, it is clear they will have very restrictive remit. The Secretary of State will choose the third-party representatives who hold the balance between workers and bosses. The Bill lays down very limited subjects negotiating bodies can touch, and the Minister will have the final say in the event of stalemate. It also tightly defines the concept of “social care worker” to include only those employed in regulated social care services, or employed directly by the individuals they assist, thus omitting those “self-employed” or in the gig economy.

While it allows for unions to access workers on employers’ premises it has a cunning cop-out to exclude any part of the workplace “used as a dwelling”. As care home are exactly that, this can exclude access to all parts of a care home except parts used exclusively by non-resident staff. The Bill explicitly limits discussion to approved topics, to such matters as diversity and inclusion, health and safety, the deployment of new technologies, and with no mention of actual wages.

We now turn to specific aspects of the Bill. First the important question of union recognition. The statutory Central Arbitration Committee (CAC) is supposed to declare for recognition in the face of employer opposition if unions can demonstrate sufficient levels of support. That sounds reasonable, but industrial relations are not always a game of cricket. Over the last 25 years since the rule was made the procedure has been a dead letter whenever employers take a tough stand, as at Amazon where the workforce was subjected to constant hostile propaganda and new workers brought in to dilute the workforce.

The new Bill makes only very minor changes to the rules on statutory recognition. At present applications for recognition are only admissible where the union has a membership of at least 10 per cent. The Bill allows for that threshold to be lowered by future legislation to any where between two and 10 per cent. The other minor change is to alter the threshold for recognition from a majority of those voting and at least 40 per cent of the workers to just an overall majority. Provisions for outlawing the dodgy practices employed by Amazon are tellingly vague. Electronic voting is essential to overcome such practices. Another barrier to union recognition is the problem of bogus self-employment. This has long been a major problem for the unions. It has been defined as “a situation in which a person registered as self-employed, a freelancer, or a temp is de facto an employee carrying out a professional activity under the authority and subordination of another company”. This is a way for bosses to get around social welfare and employment legislation, allowing them to avoid employer’s social security and income tax contributions.

The decision of the Supreme Court in December 2023 that food delivery riders were not to be regarded as workers, with the result that their union could not make an application for recognition, is something that must be reversed, according to the Institute of Employment Rights (IER) who also point out that the rule about existing non-independent ‘staff associations’ is an excuse for preventing the start of procedures to allow the recognition of proper trade unions.

The Bill has little to say about this however, and indeed only muddies the waters with the coexistence of several employment statuses (employee, limb-b worker, or self-employed). This will allow employers to continue using different legal devices and HR tactics to defeat employment status claims.

The IER fears the recent rise in employers’ National Insurance contributions will only encourage bosses to look for loopholes to dodge their employment law and tax liabilities. The same body says the Bill (together with other relevant employment legislation) should be amended to provide a watertight definition to ensure that “All rights contained in the Bill should apply to workers defined as ‘any individual who is engaged by another to provide labour and is not, in the provision of that labour, genuinely operating a business on his or her own account’.”

Zero-Hours

Another example of the watering down of Labour’s pre-election promises includes that which explicitly “will give working people security in their day-to-day lives – this involves banning exploitative zero hours contracts” with “An ongoing commitment to protect the integrity of these policies and that it ‘will put in place anti-avoidance measures where necessary’.” The icing on the cake was that “everyone” will have “the right to have a contract that reflects the number of hours they regularly work, based on a twelve-week reference period”.

Now that the election is safely out of way the Bill is slightly different. It requires the employers to offer “guaranteed” hours to only some zero-hours and low-hours workers, these will reflect hours worked over a reference period, perhaps 12 weeks. The IER expects employers will probably try to use low – rather than zero- hours – contracts to get around the law as the concept of ‘low hours’ has not been defined. Another way around the rules won’t apply to some ‘temporary’ contracts, which may or may not apply to seasonal workers. Agency workers are clearly ignored. Nor is there anything to ensure workers are not bullied into refusing an offer of a guaranteed-hours contract.

The right to strike or take other industrial action without getting sacked is, of course, fundamental to workers. The Bill will abolish the 2023 Strikes (Minimum Service Levels) Act that was never implemented, and was disliked by most bosses, and it will largely but not completely repeal most of the Trade Union Act 2016. Despite explicit promises however, the more damaging 1982–1992 anti-union laws will be retained intact. Starmer’s Bill does not even comply with the UK’s international obligations to meet International Labour Organisation (ILO) standards. Britain has been in breach of the European Social Charter because “the scope for workers to defend their interests through lawful collective action was excessively circumscribed” by such means as the requirement to give notice about strike ballots, excessive periods of notice, while the protection of workers against dismissal when taking industrial action was inadequate. Nothing in the Bill addresses these matters. Labour’s earlier promise to “end the Conservatives’ scorched-earth approach to industrial relations” has been totally forgotten with solidarity and secondary action still effectively outlawed.

Fire-and-Rehire

Fire-and-Rehire, has been widely denounced. When P&O sacked 800 workers in March 2022 even Boris Johnson promised legislative action to prevent it. As might be expected nothing was done and it is still easy to get away with so long as there is a “substantial reason” or a “sound business reason”.

The Bill has a section creating a new right to claim automatic unfair dismissal where the dismissal occurred because an employee did not agree to vary their contract or is sacked and replaced by another employee or is re-employed on worse terms.

It does not outlaw the practice entirely by allowing bosses to argue that they had to do so in order to remain in business. Any clever accountant will be able to show that it was dire necessity. The only difference is that bosses now have to argue their case. It even allows the P&O case to be repeated by not addressing the fact that workers were sacked without any alternative and replaced by agency workers.

Also lacking i s a much-needed mechanism for workers to seek a speedy remedy in such cases. Long drawn out cases only benefit lawyers.